By Park Si-soo

The Constitutional Court ruled Thursday a 39-year-old military law criminally punishing homosexual soldiers for performing sexual acts in military barracks is constitutional.

The nine-member court said the law does not infringe on their sexual freedom and right of equality, putting an emphasis on its efficacy in maintaining a sound living environment in the barracks, military morale and unity.

Of the nine justices, five ruled it constitutional, three deemed it unconstitutional and one “restrictedly unconstitutional.”

“The law regarding homosexuality in the military is constitutional,” said Lee Kang-kook, president of the Constitutional Court. “Homosexual behavior in military barracks is an act that frustrates the general public and challenges military combat power.”

A military court filed a petition against Clause 92 of the Military Law with the nation’s top court in 2008, claiming that regulating an individual’s sexual preference is a violation of the rights to decide one’s sexual behavior and of one’s privacy.

The military court sought the petition when it was dealing with the case of a 27 year-old sergeant who was indicted on charges of “habitually touching the buttocks and sexual organ” of a subordinate in the barracks.

Clause No. 92, established in 1962, stipulates that those who are engaged in “sodomy or other acts of molestation” are to be given a jail sentence of up to one year. The military court said that punishing unforced sexual acts between people of the same sex was excessive.

In 2002, the Constitutional Court ruled that the disputed clause, particularly regarding the term “other acts of molestation,” was constitutional.

It said that it is hard to spell out in the clause what the other acts of molestation are as they take place in a variety of ways.

In October 2010, the state human rights watchdog demanded the Constitutional Court abolish the anti-sodomy clause in military law since it infringed on the sexual freedom of gay soldiers. The commission said homosexuality does not negatively affect military combat power, morality or unity.

According to the rights watchdog, few countries punish soldiers for acts of homosexuality in the barracks.

Militaries in Canada, Australia and Israel allow homosexuals to join, even after they came out of the closet, it said. In European Union states, except for Greece, homosexuals are allowed to serve in the army.